Fill and Sign the Compensation Wages Form

IN THE CIRCUIT COURT OF_________ COUNTY, ____________ NAME OF PLAINTIFF )       ) ) V. ) NO. ) ) NAME OF DEFENDANT )       ) ) MOTION FOR COMPENSATION OF JURORS AT CURRENT WAGES AND FOR REIMBURSEMENT OF PRIMARY CARE COSTS COMES NOW, ______________, by counsel, and moves this Court pursu ant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article ______, Sections _________ of the __________ Constitution to order compensation of jurors as current wages and for reimbursement of primary care costs. In support of his motion, ________________ states as follows: 1 . It is habitual for jurors in __________ to be paid minimal sums for jury service, which obviously results in consid erable hardship for those who may be kept from their jobs for several weeks in an extended capital case. These people--gener ally daily wage earners of rather low income--constitute a legal ly cognizable group. 2 . In __________, women still provide primary care to children under most circumstances. Women are routinely excused from jury service because they have small children, rather than being offered the alternative of child care, as is provided in many other parts of the world to mothers who wish to work, or take their proper place in society. This violates ____________'s rights, as well as the rights of the mother. Cf. Duren v. Mis souri , 439 U.S. 357 (1979) (exemption, rather than exclusion, of women based on sexual stereotype of all mothers being in charge of child care struck down). 3 . The Sixth Amendment to the United States Constitu tion guaran tees every criminal defendant the right to jury drawn from a pool which fairly represents a cross-section of the commu nity. See , e.g. , Duren v. Missouri , 439 U.S. 357 (1979); Taylor v. Louisi ana , 419 U.S. 522 (1975). It is of particular impor tance in a death penalty case that the jury which decides the defendant's fate fairly repre sents the commu nity, for juries are required to consider " as a miti gating factor, any aspect of a defenda nt's character or record and any of the circum - stances of the offense that the defendant prof fers as a basis for a sentence less than death." Lockett v. Ohio , 438 U.S. 586, 604 (1978) (emphasis in original); see also Davis v. Zant , 721 F.2d 1478, 1482 (11th Cir. 1983). 4 . The per diem and mileage compensation allowed by the Circuit Court does not even provide jurors with the minimum wage of $4.35 per hour. See 29 U.S.C. ? 206(a)(1) (as amended, 1990) . At a most basic level, the minimum wage law is designed to fix: a floor below which wages could not fall [so] that individu als . . . would be guaran teed an income on which one could maintain a minimum living standard and not find it neces sary either to rely on Government assistance or to go without basic necessities. . . . S.REP. No. 440, 95th Cong., 1st Sess. 2-3 (1977) ; see also Fair Labor Stan dards Act of 1938 . Indeed, "we are acknowledging and supporting poverty by law, unless we raise the minimum wage standards to at least above the poverty level." 112 CONG. REC. 19744 (1965) (remarks of Sen. Yarborough) (emphasis supplied). In addition to hourly workers, the federal minimum wage has been held to apply to various other groups represented on the jury venire, from journal ists, see , e.g. , Sun Publishing Company v. Walling , 140 F.2d 445 (6th Cir. 1944), cert. denied , 322 U.S. 728, 64 S. Ct. 946, 88 L. Ed. 1564 (1944); to bank workers, see , e.g. , Hodgson v. Industrial Bank of Savannah , 347 F.Supp. 63 (S.D.Ga. 1972); and to the manager of a state mental insti tu tion. See , e.g. , Williams v. Eastside Mental Health Center, Inc. , 669 F.2d 671 (11th Cir. 1982). Indeed, currently there are over 13.2 million employees of service industries protected by the provisions of the law--twenty percent of the total workforce covered. See Roberts & Bowers, Patching the Crack in the Floor , CLEARINGHOUSE REVIEW, 26 (May 1988). Similar ly, the minimum wage must be applied to jurors, who may be charged with the most difficult job of all--deciding whether ________________ should live or die. 5 . It is no answer to say that by electing to vote (itself a fundamental constitutional right of any citizen), potential jurors "agree" to sub-minimum wages: It has been repeatedly held that parties themselves may not contract to work for less than the minimum wage rate. This Court has said "[T]he obligation of the employer to meet the minimum working conditions prescribed in the Act is statutory and a matter of general public policy, and cannot be waived or con tracted away by individual employers or em ployees." Wirtz v. Leonard , 317 F.2d 768, 769 (5th Cir. 1963) ( quoting Mitchell v. Turner , 286 F.2d 104, 106 (5th Cir.)); accord Hargis v. Wabash Railroad Co. , 163 F.2d 608, 611-12 (7th Cir. 1947); De Pasquale v. Williams-Bauer Corporation , 151 F.2d 578, 579 (2d Cir. 1945); see also Republic Pictures Corporation v. Kappler , 151 F.2d 543 (8th Cir. 1945) (state itself cannot legislate to limit effect of FLSA ). 6 . Equally, absent adequate compensation and reimburse ment for the costs of primary care, it is practically impossi ble for daily laborers and per sons caring for young chil - dren to serve on the jury. Because such persons are forced to request excuses for hardship, as they are unable to afford the financial loss that jury service en tails, they are systemati cally excluded from the jury pool. See Gadsden Times Publishing Corp. v. Dean , 268 So. 2d 829 (Ala. App.), cert. denied , 268 So. 2d 834 (Ala. 1972), rev'd on other grounds , 412 U.S. 543 (1973) (purpose of paying jurors is to ensure that those rendering service to the state receive adequate compens ation) (emphasis added). The de facto exclusion of these groups violates ________________'s rights. Daily wage earners and primary caregivers for young chil - dren are cogniza ble groups for Sixth Amendment purposes and their underrepre sen tation from jury pools would clearly consti tute a violation of ______________'s consti tutional rights. See , e.g. , Theil v. Southern Pacific Co. , 328 U.S. 217 (1946). The Supreme Court has recently made it clear once again that cogni zable groups are not limited to racial minorities, women, and young people, but that a "Sixth Amendment [fair-cross section] claim would be just as strong if the object of the exclusion had been, not blacks, but postmen, or lawyers, or clergymen, or any number of other identi - fiable groups ." Holland v. Illinois , 493 U.S. 474, 110 S. Ct. 803, 107 L. Ed. 2d 905, 919 (1990) (empha sis added). 7 . The systematic under-compensation of jurors operates to deny the defendant his fundamental constitutional rights--in partic ular, the right to an impartial jury drawn from a fair cross-section of the community, as guaranteed by the Sixth and Four teenth Amendments to the United States Constitution. It should also be emphasized that the results of under-compensation of jurors carries with it further adverse ramifications such as the consequential exclusion of jurors due to age, sex, and eth nicity, all of which bear a direct relationship to income strata, or to being the primary care giver in the family. Systematic under-compensation of jurors would thus run afoul of the relevant provisions of the state and federal constitu tions. Hill v. Texas , 316 U.S. 400, 404 (1942); Akins v. Texas , 325 U.S. 398 (1945). 8 . The systematic underrepresentation of distinctive groups accom plished through failure to pay an adequate compensa tion to jurors is analogous to the practice struck down in Mach et ti v. Linahan , 679 F.2d 236 (11th Cir. 1982). In Machetti , the court declared a Georgia statute unconstitutional in which women were allowed to opt out on jury duty simply by sending in a form that stated they were female. Having to excuse wage earners and primary caregivers of small children because of financial hard ship creates underrepresentation of distinctive groups and denies a defendant the "right to a fair trial by [a] jury of a represen tative segment of the community." Id. at 239. 9 . Regardless of whether ________________ himself belongs to any of the groups which may be unconstitu tion - ally underreprese nt ed in the County jury pools, he has standing to chal lenge their exclu sion. See Powers v. Ohio , 499 U.S. ___, 111 S. Ct. ___, 113 L. Ed. 2d 411 (1991). The Supreme Court has held that the Sixth Amend ment entitles every defendant to object to a venire that is not designed to represent a fair cross section of the communi ty, whether or not the systematically excluded groups are groups to which he himself belongs. WHEREFORE, __________________ moves this Court, after an eviden tiary hearing on the motion, 1 . to pay jurors their current wages and to compensate primary caregivers for day care costs, or, in the alterna tive, 2 . to increase the flat rate paid to citizens called for jury service. Respectfully submitted, ___________________ ___________________ CERTIFICATE OF SERVICE I, ___________, attorney for ________________, do hereby certify that I have on this day delivered, by hand, a true and correct copy of the foregoing Motion to This the ____ day of __________ _______. Respectfully submitted, _____________________________